patent (2)

Just when you thought it was safe to glance away from Congress for a moment, another poisonous issue raises its ugly head in the Senate.And it's on a very, very short fuse - September 6, to be exact, the very day the Senate returns from vacation.Yes, we were wrong to think that just because Congress is on vacation that we were safe to check in with how the kids feel about going back to school, or work on that sorry household budget, or enjoy the staycation.   As if the administration and Congress had not soured the economy enough already, on the Senate's very first day back in session, Harry Reid plans to make our challenged economy much, much worse.The "America Invents Act" is more poison for the US economyIt's known as  "patent reform" (HR 1249/SB 23) and it's anything but reform with it's current Section 18 intact.  It's a bald-faced sellout to Big Banking and Wall Street.  There are several difficulties with the bill, but the one that jumps out at me is the fact that it's simply a major job-killer.   And for unconstitutionality, it's a two-fer.Target: Hold and AmendThrough the kind graces of Sen Tom Coburn (R  OK) the Senate version of the bill is currently on hold, but that won't last when Reid moves for cloture.   We should vocally support Coburn in insisting that the bill be brought to the Senate floor in amendable fashion so Section 18 can be removed and the remaining act be given full public consideration, then passed.  As noted above, time is short, and this is our last chance.  The House version HR 1249 has already passed the US House.Section 18 is the poison pillNormally, when we speak of a poison pill, we think of an amendment to a bill that will prevent passage.   In this case, the poison is for property rights and job creation in the US.Predictably, Sen. Chuck Schumer is the one who inserted the Section 18 language into the Senate version of the America Invents Act, and Harry Reid wants the Senate to pass the bill without knowing what's in it, so he scheduled the bill to hit the floor in non-amendable fashion the day the Senate reconvenes.Section 18 applies only to the electronic payment processing industry* and it gives the US Patent and  Trademark Office (USPTO) the authority to revoke patents it has granted in the past.  Under this measure, the USPTO can only reconsider patents that have been upheld in federal court when challenged.   If the America Invents Act passes with Section 18 intact, then expect to see big banks and Wall Street challenge issuance of patents to inventors to whom they currently must pay royalties.There's the pay-off for the banks and Wall Street: they get out of millions of dollars of royalties paid to inventors by getting Congress to confiscate the property rights of inventors and kill plenty of jobs in the process - after a court has confirmed the validity of the patent!How does Section 18 kill jobs?If inventive companies get their patents revoked by the USPTO,  then those companies lose their royalty revenues and go out of business and the corresponding  jobs disappear.   But it gets much worse.  Remember, this measure applies only to the electronic payment processing industry.  Can you think of any companies that process payments electronically?   Venture capitalists are simply balking now at investing in new companies with new payment technology because of  Section 18.  Those jobs may never appear, and are certainly being delayed.But many venture capitalists aren't just balking at investing in new electronic payment companies, they are also hesitating to invest in any new company that will rely on electronic payment processing to receive a major portion of its revenues.When new companies don't form, new jobs never appear.Then there are many established companies that will almost certainly be threatened in one way or another if patents are revoked simply because Wall Street wants them revoked.  Paypal, for instance, holds at least 4 patents that I'm aware of.Oh yeah, then there's that bothersome Constitution thing...As one might expect, Section 18 gives the bill some serious constitutional difficulty.First there's the simple concept of property rights.The word "right" is used only once in the entire US Constitution.  That's in Article 1, Section 8, paragraph 8 granting powers to Congress:
“to promote the Progress of Science and useful Arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
Section 18 allows the USPTO to withdraw or void a patent, without due process, even if a high federal court has examined the patent, confirmed it, and ordered transgressors to pay the patent-holder damages for unlicensed use of the intellectual property.The second difficulty is the separation of powers issue (noted above) raised by allowing the executive branch to overrule the judicial branch.  Section 18 does not simply allow for the possibility of violation of the separation of powers, it requires it in every case.  The USPTO cannot consider a challenge to withdraw or void a patent unless that patent has already been challenged in court.Violation of property rights, absence of due process, and violation of separation of powers is non-trivial in my world.Politics is no predictorCuriously enough, politics is no predictor of the position a given member of Congress is likely to take on Section 18.   Obama and Reid are for it, but Former House Speaker Nancy Pelosi and uberliberal Maxine Waters are against it.   The best predictor of a politician's position on this issue is to look at campaign contributions. You can figure that one out. 
Unexpectedly, even Rep. Maxine Waters says Section 18 "is just wrong."
Since we know that politics is no predictor on this issue, there's nothing for it but for us to contact all our Senators and insist they they help Sen. Tom Coburn keep a hold on the bill until Senate Majority Leader Harry Reid agrees to allow the bill onto the Senate floor in an amendable form.  Then insist that the bill be considered in the full light of day, with full public disclosure, before passage.Action Center AvailableMy good friends at TEAPAC - the Pasadena Patriots in CA have taken the lead on this issue.   They've erected a web site called which contains on online petition you can sign and an online Action Center with a sample letter to help you contact your Senator.If you are a new media/social media  type or a blogger, there's help for you there, too.Action NowIf we follow our normal drill of waiting until the Senate has been back in session for a couple of days before we check in on what they are doing, we'll have already lost this battle, and that's exactly the way Senator Harry Reid has planned it.Spread the WordThe Action Center also has tools to help you spread the word to your friends and this part is important: We only have 12 days to get the word out and get this travesty in the Senate stopped.   We'll have to overcome the natural inertia activists usually feel when Congress is allegedly on vacation.If we fail to slap ourselves out of our August angst for activism now, we'll see more jobs disappear, far less investment in new jobs, and a Congress that feels safe in confiscating still more of our rights in order to reward still more big campaign contributors.Join us.Crossposted to save jobs and protect private property rights*Disclosure:  I hold provisional patents, although not in the electronic payment processing industry.  I have been active in the payment processing industry, processing payments for more than 10,000 merchants for over 15 years.  I believe strongly in the value of intellectual property and the property rights of  inventors, artists and creators to enjoy the fruits of their creations.
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            Let us pray, for First Solar, Inc., may it prove to be the grand exception that truly tests (proves) the rule!
Accounting for only 1.3% of all energy provision in America, “Obama-approved” sources will never in the foreseeable future replace fossil fuels.  Of course, besides huge new fields (the Bakken Deposit) of oil and immense troves of natural gas . . . the United States has the world’s largest concentrations of Keragen (“oil shale”) with enough in Western Colorado, Utah and Wyoming to provide all the world’s energy needs for the next six and a half centuries. It goes without saying that petroleum, natural gas and keragen are all EVIL FOSSIL FUELS not to be considered by Barak the Bird-Brain.
#1 Detriment to Viable Alternatives
 for U.S. Energy? Expensive Unions!
            After forty-four years of unending subsidies and false starts, solar energy is not much further along than it was when Jimmy Carter first did the alternative energy foreplay routine on all his progressive friends. After all that time it’s getting harder and harder to build up their orgiastic excitement to the crescendo that used to bring progressives such a thrill back in the day . . . in short, like most of today’s alternative energy options, solar power is largely impotent when compared to the sheer power and virility that is petroleum, natural gas and coal which combined with nuclear and hydro-electric power yield 96.8% of America’s total energy. At present, no single alternative energy source produces more than the 1.6% of total energy provided by burning wood; and all of the documented alternatives taken together fail to match the 5.6% of total energy provided by hydro-electric power (which produces 20% of the world’s energy and 88% of the world’s renewable energy at present).
            When both transportation needs and home and industrial electricity are combined, the following information holds true:
RAE (Renewable “Alternative” Energy) –
            After all the hype and all the monetary drain, these sources (solar; wind; geo-thermal; tidal; waves; mirror) only amount to 1.3% of the nation’s total energy. The most ancient (and therefore NOT “alternative”) of our renewable energy sources, water-power and wood-burning 7.2% combined, still account for 84.7% of all renewable energy power usage in America in 2011. For the record, only water-power generation of electricity (hydro-electric power) among all the renewable forms is viable for large energy production. Also for the record, battery-powered cars get 47% of their electrical charges from coal furnaces . . .
Coal, which provides nearly half -- 47.3% -- of the power providing the nation’s electricity, accounts for 22.6% of all energy (91% of all coal is used for electricity) expenditure.
Hydro-electric Power
Is presently our major viable renewable energy source and accounts for 5.6% of all energy use in the country. Hydro-electricity is relatively new, (only 120 years old) but water-power for mills has been used for at least the last three thousand years. The failure of the other “alternative energy” ideas to catch on is graphically understood when you consider that 86% of all renewable energy comes from hydro-electric generating stations in dams and burning wood . . . and that the United States has one of the least expansive hydro-electric systems in the entire world.
Natural Gas
Provides 23.8% of all energy used in the country.
Nuclear (electric) Power  --
Only provides 8.5% of America’s energy.
36.6% of our total energy comes from oil; 71% of petroleum is used for transportation and 23% for industrial purposes.
Wood Burning
            Still accounts for 1.6% of all American energy and a larger share of our energy use than any single “renewable energy source” except, of course hydro-electric power.  Only wood-burning and hydro-electric power are viable renewable energy sources at present.
            Solar energy has proved to be a huge disappointment and its future is very much in the dark. Wind power has also left our sails slack, while geo-thermal has left its proponents cold.  Accounting for only 1.3% of all energy provision in America, “Obama-approved” sources will never in the foreseeable future replace fossil fuels.  Of course, besides huge new fields (the Bakken Deposit) of oil and immense troves of natural gas . . . the United States has the world’s largest concentrations of Keragen (“oil shale”) with enough in Western Colorado, Utah and Wyoming to provide all the world’s energy needs for the next six and a half centuries. It goes without saying that petroleum, natural gas and keragen are all EVIL FOSSIL FUELS not to be considered as viable alternatives by Barak the Bird-Brain. 
Progressives in Washington, D.C. have destroyed the economy with the thirty-four year old plague of CRA ’77 on the one hand creating the sub-prime lending crisis and our ongoing financial meltdown; and on the other hand with deliberate and malicious energy-blockage (no new refinery has been built in this country since 1974) bankrupting the country. Until they put us back to the dark ages (literally!!) they will not be happy. The contradictions of the green-energy fanatics stand out clearly in this next little item . . . .
            At present all “independent” American solar panel manufacturers have failed save one: First Solar, Inc.  First Solar, an unsubsidized firm unlike 99.8% of its still viable competitors, has disappointed investors again as net income for the last quarter fell 33% in the face of strong Chinese competition. The Chinese, of course, are able to put cheaper labor in their shops, something not possible in a country whose wage structure is driven by union demands. In short, the fault presumably lies NOT with First Solar, but with the economic conditions that progressives have handcuffed us with over the last six decades.
There may still be hope -- First Solar has gone directly against the grain (shades of “Rearden Metal,” Mr. Galt!) and sacrificed energy production capability thus far in the interest of lighter weight, production- cost savings and versatility. The company specializes in bendable thin-film solar panels which capture sunlight and convert it to electricity. First Solar’s film is only able to capture around 11% of the sunlight shining on the panel which is less efficient than wafer-style solar panels, which can capture anywhere from 20 to 25 percent of the sunlight shining on the panel. The wafer-style panels meanwhile are all being manufactured in this country by firms heavily-subsidized by the Obama government. In its favor, First Solar was the first company to bring cost-per-watt of solar energy below $1 . . . a huge, indeed the critical, step in making solar energy more competitive with traditional energy sources from fossil fuels. 
In short, First Solar is the first nearly viable solar energy manufacturer in America, it’s innovative and even intransigent (refusing to follow the herd and trusting in their own vision) and thanks to First Solar, there really has been a breakthrough in solar energy viability.  While other companies have concentrated on solar energy, First Solar has concentrated on cost-viability so that its products while only about as efficient as the panels installed in 1980 . . . now cost about 1.25% as much as they did back then. In other words, except for the influence of the unions on wages, First Solar might already be the world’s leader in providing solar energy. As it stands, however, they’re probably going to need to triple their efficiency past the wafer-companies in order to compete with the Chinese. 
Then there’s the matter of patent infringement, we can expect the Chinese, if First Solar ever does make it . . . to just steal the process (none of these niceties of paying patent royalties) and again put the American economy between the sword and the wall.   Let us pray, for First Solar, Inc. Its Chinese competitors like SunTech and JA Solar are the main rivals. Sun Tech had been the last U.S. independent solar panel manufacturer other than First Solar but now the Chinese and French own it. The long-term viability of First Solar is at stake and reportedly the rats are leaving the sinking ship (huge amounts of insider sales and departure of many of these insiders). Meanwhile besides the Chinese, First Solar must compete against heavily-subsidized but less efficient American firms. These firms (which would have all gone bankrupt by now) are still alive and still fighting to keep First Solar’s share of the solar panel market low. Much as the federal auto-bailout has threatened Ford’s survival, federal solar subsidies are now threatening the only viable American solar panel manufacturer. Let us pray, for First Solar, Inc., may it prove to be the grand exception that truly tests the rule! 
Ya’all live long, strong and ornery,
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